Citation Nr: A25041244
Decision Date: 05/06/25	Archive Date: 05/06/25

DOCKET NO. 210923-188470
DATE: May 6, 2025

ORDER

Entitlement to an evaluation greater than 50 percent for major depressive disorder, recurrent, moderate, with anxious distress, is denied.

REMANDED

Entitlement to an evaluation greater than 30 percent for degenerative arthritis, left knee joint, with genu varum deformity is remanded.

Entitlement to a total disability rating based on unemployability (TDIU) is remanded.

FINDING OF FACT

The Veteran's service-connected major depressive disorder, recurrent, moderate, with anxious distress is manifested by occupational and social impairment with reduced reliability and productivity.

CONCLUSION OF LAW

The criteria for an evaluation greater than 50 percent for major depressive disorder, recurrent, moderate, with anxious distress, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.130, Diagnostic Code (DC) 9434.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from September 1979 to November 1982.

In the September 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.

Therefore, the Board may only consider the evidence of record at the time of the October 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or her representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claim of entitlement to an evaluation greater than 30 percent for degenerative arthritis, left knee joint, with genu varum deformity and TDIU, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Increased Ratings

Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

When a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred in that timeframe. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007); see also 38 C.F.R. § 3.400(o)(2) (allowing for an earlier effective date for an increased rating grant to the extent the worsened severity is factually ascertainable within the year preceding the filed claim). Dubbed the "one year look back" provision, it is essentially a one-year grace period for a veteran to file an increased rating claim following some incident of worsening.

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995).

The Board is responsible for determining whether the evidence persuasively supports the claim or is in approximate balance, with the Veteran prevailing in either event, or whether the evidence is persuasively against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Major depressive disorder, recurrent, moderate, with anxious distress

The Veteran contends that her major depressive disorder currently rated at 50 percent disabling, warrants a higher evaluation. See September 2021 Notice of Disagreement.

In evaluating the evidence of record, the Board concludes that the Veteran's symptoms more closely approximated the symptoms associated with a 50 percent rating; is manifested by occupational and social impairment with reduced reliability and productivity. Therefore, an increased rating is denied.

Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013); 38 C.F.R. § 4.126(a).

The list of symptoms under the rating criteria are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443.

Under the General Formula, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130.

A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130.

A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130.

Major depressive disorder was first service connected in a January 2019 rating decision. It was evaluated at 30 percent disabling with an effective date of October 22, 2018. The major depressive disorder was increased to 50 percent in the October 2020 rating decision based on an October 2020 VA examination.

At the October 2020 VA examination, examiner A.S. verified the diagnosis of major depressive disorder, recurrent, moderate, with anxious distress, and opined that the condition was best summarized as occupational and social impairment with reduced reliability and productivity.

The Veteran reported living with her spouse of 40 years, their daughter, son-in-law and three grandchildren. She described her relationship with her spouse as good, and being each other's best friend. She indicated that she is close with her adult daughter, and chats regularly with her adult son who lives out of state. The Veteran described having one close friend who she talks to a couple of times a week. The Veteran reported being unable to engage in many of her hobbies due to chronic knee pain.

The Veteran reported being unemployed since 2015. The Veteran reported being in therapy and took medication for her service-connected psychiatric disorder. When asked about symptoms the Veteran reported "I'm struggling with being able to go along my normal lifestyle because of the excruciating pain that I have in my knees. Some days I don't want to get out of bed, and some days I don't." The Veteran endorsed depressed mood, decreased interest in daily activity, decreased appetite, daytime fatigue, sleep onset difficulties, excessive worry, irritability, and feeling on edge. She denied suicidal ideation and homicidal ideation. She also denied prominent symptoms of psychosis and mania.

Symptoms noted on examination were depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. Behavioral observations were that she was appropriately groomed, alert, and oriented. She maintained appropriate eye contact throughout the interview. Her manner was friendly and cooperative. Her mood was dysthymic, and affect was congruent with content. The Veteran's thought processes were logical, linear, and goal directed. There was no evidence of hallucinations, delusions, or thought disorder. Speech was normal in volume, rate, and articulation. Psychomotor activity was within normal range. The Veteran displayed no notable difficulties with concentration. Long- and short-term memories were intact. Judgment and insight appeared normal.

VA Medical Center (VAMC) records show treatment for mental health. At an August 2019 medication refill encounter the Veteran requested that her dosage be increased because "I feel more down than up because things that I am challenged with I melt down." In an October 2019 mental health treatment record, the Veteran reported unhappy mood, crying spells, low energy, low motivation, decreased social activities, feelings of worthlessness or hopelessness. The Veteran denied panic attacks, mania, psychosis, or thoughts of harm to self or others. On examination the Veteran was appropriately groomed, cooperative and had normal speech. Her mood was depressed, and her affect constricted. She was alert and oriented, with goal-directed thought processes, and short- and long- term memory was intact. In a December 2019 mental health treatment record the Veteran reported an improvement in her chronic depression, and improved sleep. In a February 2020 mental health treatment record the Veteran again reported improvement in her depression and sleep but noted that she still feels tired and unmotivated on some days.

In evaluating the evidence of record, the Board concludes that the Veteran's symptoms more closely approximated the symptoms associated with a 50 percent rating: occupational and social impairment with reduced reliability and productivity. The evidence persuasively weighs against finding that major depressive disorder, recurrent, moderate, with anxious distress manifested with occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood.

The Veteran's reported symptoms of anxiety, depression, chronic sleep impairment, are listed as characteristic of a 30 percent rating in the General Formula, and the reported symptoms of disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships are listed as characteristic of a 50 percent rating. The evidence showed that in this case the Veteran experienced duration, frequency and severity of these reported symptoms that is typical of these symptoms, and not such a grossly different duration, frequency or severity that would suggest a higher rating is warranted, thus this supports a 50 percent evaluation.

Deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood are not shown. The Veteran reported depressed mood, related to her chronic pain, which also interfered with engaging in hobbies. The Veteran also reported some impairment to establishing and maintaining friendships and work relationships.

Although the examination indicated that sometimes the Veteran cannot get out of bed, and in fact the examination was conducted with the Veteran in her bed, the examination also indicates that this is due to the chronic knee pain and is not a part of the psychiatric disorder. The Veteran reported, "...because of the excruciating pain that I have in my knees. Some days I don't want to get out of bed, and some days I don't."

While there is some degree of impairment to social, mood and occupational areas, there is no impairment to family relations, judgment, thinking, or memory. The examiner's observations indicate that self-care and conversation is normal, as the Veteran's speech was normal, with no delusions or obsessions, and with fair judgment and insight. The Veteran presented adequately groomed, and her stated age.

The Veteran reported healthy relationships with family including her husband and her adult children, with regular contact and described her marriage as with her "best friend." The Veteran also reported maintaining contact with one close friend since high school. There was no report of problems with memory or communication.

There is no evidence in the record of suicidal ideation or obsessional rituals which interfere with routine activities. There is no indication of speech being intermittently illogical, obscure, or irrelevant. The Veteran did not experience near continuous panic or depression affecting the ability to function independently, appropriately and effectively. There is no evidence of impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; or neglect of personal appearance and hygiene. There is no indication in the record that the Veteran experienced difficulty in adapting to stressful circumstances (including work or a worklike setting) or the inability to establish and maintain effective relationships.

The examiner opined that for the major depressive disorder, recurrent, moderate, with anxious distress the condition was best summarized as occupational and social impairment with reduced reliability and productivity, which would be characteristic of a degree of impairment warranting a 50 percent evaluation. The Board affords significant probative weight to the VA examiner's opinion on the level of occupational and social impairment caused by the Veteran's service-connected disability because of the examiner's training and thorough evaluation of the severity of the Veteran's condition.

As the Veteran's major depressive disorder, recurrent, moderate, with anxious distress does not meet the rating criteria for an increased 70 percent disability rating, it follows that her service-connected major depressive disorder symptoms also do not meet the more severe rating criteria for an increased 100 percent disability rating under DC 9434.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for an increased rating. As the evidence of record persuasively weighs against an increased rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

The Board finds that the Veteran's symptoms more nearly approximate the criteria for a 50 percent rating, and a rating greater than 50 percent for major depressive disorder, recurrent, moderate, with anxious distress is not warranted at any time during the appeal.

REASONS FOR REMAND

Increase for degenerative arthritis, left knee joint, with genu varum deformity

The Veteran is seeking a rating greater than 30 percent for her left knee degenerative arthritis with genu varum deformity. See September 2021 Notice of Disagreement.

Upon review, the Board finds that the claim must be remanded to correct a pre-decisional duty to assist error.

When there is a duty to assist to provide an examination and opinion, that examination and opinion must be sufficient. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

If medication is not specifically contemplated by the rating criteria, a higher rating may not be denied on the basis of the relief the medication provides. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). VA is required "to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use," Ingram v. Collins, __ Vet. App. __, No. 23-1798, 2025 U.S. App. Vet. Claims LEXIS 327, *1 (Mar. 12, 2025).

The September 2020 VA examination showed significantly improved ranges of motion for the left knee, when compared with the prior December 2018 VA examination, despite the Veteran's report of significant worsening in the last year. The Veteran service-connect left knee is treated with cortisone injections every 3 months, Supartz injections every 3 months, tramadol, gabapentin, cyclobenzaprine, and ibuprofen. VAMC record dated February 2020 indicated that her provider recommended total knee replacement for the left knee.

There is no indication that the provider in the September 2020 examination considered and discounted the ameliorative effects of medication when opining as to what the ranges of motion would be during a flare up or after repeated use over time. The range of motion estimate for during a flare up went from "nearly unmovable" to 75 degrees while the Veteran was reporting a worsening of the condition. See September 2020 examination; December 2018 examination. Either the examiner grossly misestimated the range of motion without an adequate rationale, or the Veteran was experiencing the positive effects of her treatment (including injections) which improved her ranges of motion, and the examiner failed to discount it.

The Board finds the September 2020 examination insufficient. A new examination is required.

TDIU

Although the Veteran did not appeal the entitlement to TDIU on the Notice of Disagreement, the evidence reasonably raises the issue. The Board must consider the issue of TDIU whenever a veteran seeks an increased rating and the record contains "cogent evidence of unemployability." Comer v. Peake, 552 F.3d 1362, 1366 (2009).

Entitlement to TDIU is not freestanding claim to an entitlement, but rather a special type of increase in rating of the underlying service-connected conditions. Harper v. Wilkie, 30 Vet. App. 356, 359 (2018), citing Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009).

In this case, there is evidence presented, in the form of the October 2020 VA examination, at which the Veteran reported that she is not working and has not worked since 2015. The Veteran reported extreme pain with her service-connected knees which interferes with going up and down stairs and results in her spending some days in bed. In her September 2021 lay statement, the Veteran reported difficulty getting dressed, getting in and out of the shower, and preparing meals.

The Veteran submitted an October 2018 VA form 21-8940, Application for Increased Compensation Based on Unemployability (8940), and indicated that her bilateral knees were the cause of her unemployability. The claim for TDIU was denied in an April 2019 rating decision based on not meeting schedular requirements.

The Board notes the Veteran met schedular requirements for TDIU as the result of two or more disabilities.

A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. Disabilities of one or both lower extremities, disabilities resulting from common etiology or a single accident, and disabilities affecting a single body system (e.g., orthopedic) will be considered one disability for the purpose of one 60 percent disability, or one 40 percent disability. 38 C.F.R. § 4.16(a).

When considering the left knee under 38 C.F.R. § 4.16(a), the left knee has a combined rating of 30 percent (DC 5010-5260) plus 20 percent (DC 5257); which means the left knee is rated at more than 40 percent for TDIU purposes, and when combined with the other service-connected disabilities, resulted in a combined rating greater than 70 percent. The Veteran has been rated at 80 percent combined for her service-connected disabilities since March 2010.

Because a decision on the increase claim for the left knee could significantly impact a decision on entitlement to TDIU, the issues are inextricably intertwined. As the Board is remanding the issue of entitlement to an increased evaluation for the left knee, the Board must also remand the reasonably raised issue of entitlement to TDIU. Smith v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (where facts underlying separate claims are "intimately connected," interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together).

The matters are REMANDED for the following actions:

1. Obtain an examination with retrospective medical opinion as to the severity of the service-connected left knee degenerative arthritis with genu varum deformity during the period on appeal, including ranges of motion for the left knee, without considering the ameliorative effects of medication (cortisone injections every 3 months, Supartz injections every 3 months, tramadol, gabapentin, cyclobenzaprine, and ibuprofen). Please provide the symptoms, including estimated ranges of motion of the Veteran's left knee as if the Veteran had not taken any medication and was not benefiting from the medication's positive effects. Please specify if symptoms were different for different time periods within the relevant appeal period (August 2019-October 2020).

In providing the requested opinions, consider the Veteran's statements. The Veteran is competent to attest to matters of which she has first-hand knowledge, including observable symptoms.

The examiner must provide a clear, understandable and complete rationale for all conclusions reached and opinions provided.

2. After obtaining the medical opinion, readjudicate the issue of entitlement to TDIU, as a part of the increase claim for the left knee. 

 

JOHN Z. JONES

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Schneider, Joan K.

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.